The Supreme Court and Religious Freedom

| August 18, 2015

US Supreme Court,News about the 2015 term of the United States Supreme Court was dominated by its decision in Obergefell v. Hodges, which required all States to allow same sex marriage.  In that decision, many Christians, churches, and commentators see a potential challenge to (or restriction on) the freedom to exercise religion.  Will churches be required to perform same sex marriages under threat of lawsuit?  Can pastors be sued for calling homosexuality sin?  Most importantly, does this case signal a threat against the free exercise of religion?

The answer to all three questions is “No” – and a review of the Supreme Court’s decisions this term clearly shows a Court actively protective of religious freedom.

Obergefell v. Hodges was a case about secular marriage licenses, and the governmental benefits that were associated with a marriage recognized by the State.  The majority opinion of Justice Kennedy explained that this decision did not impact what different religions may think about homosexuality or same sex marriage, saying “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

There were three cases before the Supreme Court this term that directly concerned and impacted the freedom of religion: Holt v. Hobbs, about the rights of religion by convicts serving prison sentences;  Reed v. Town of Gilbert, about a city ordinance limiting the size of signs on church  buildings; and EEOC v. Abercrombie & Fitch  about freedom of religion of an employee at work.  In each case, the Court ruled in favor of religious liberty, the votes were 9 – 0, 9 – 0, and 8 – 1.

Gregory Holt is serving a life sentence for burglary and domestic battery in an Arkansas prison.  Mr. Holt is a Muslim, who continued the practice of his religion in prison through prayers, meals, and spiritual counseling.  He wanted to grow a half-inch beard as part of his religious practice.  The Arkansas prison allowed only quarter-inch beards.  He filed suit to be allowed to grow the longer beard.

The case progressed through the courts to the Supreme Court, which ruled in favor of Mr. Holt’s right of religious exercise.  The Court based its decision on the Hobby Lobby case of the prior term, that first looked to whether the governmental regulation placed a ‘substantial burden” on a practice motivated by religion; and if it did (as did the Arkansas ban on beards) then required the government to show a compelling reason for the regulation.  Justice Alito, writing for a unanimous court, noted that the laws “provide very broad protection for religious liberty” which include “any exercise of religion.”  The Court found that Mr. Holt’s desire to grow a beard was a sincere exercise of his religion, and that no compelling reason distinguished between an acceptable quarter-inch beard and the desired half-inch beard.  The Court ruled 9 -0 to protect religious freedom.

Clyde Reed is the pastor of Good News Community Church in Gilbert, Arizona. The town enacted a code governing outdoor signs that identified various categories of signs based on the type of information conveyed. One category concerned temporary signs concerning religious, charitable, or community events.  Such temporary signs could be no larger than six square feet, and were limited in how long they could be displayed.  These restrictions were more restrictive than signs for other events.

Good News Community Church places temporary signs to advertise their upcoming services.  The town issued citations, the Church filed a lawsuit, and the case was on its way to the Supreme Court.

The Court ruled for the Church 9 – 0. Justice Thomas wrote the majority opinion, that the government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  The town’s ordinances were unconstitutional because “the Church’s signs inviting people to attend their worship services are treated differently from signs conveying other types of ideas.”

Samantha Elauf is a Muslim woman who applied for a job with Abercrombie & Fitch.  For religious reasons, she wrote a head scarf.  The company’s decision not to hire her was based on its desire to avoid accommodating her religious practice, because the company had a dress code that expressed its “classic East Coast collegiate style.” It claimed that it could discriminate against Ms. Elauf’s exercise of religion in its decision to hire, because she had never actually said in her job interview that she would seek to wear the head scarf – the company just assumed it.

The Supreme Court ruled 8 – 1 that the case presented a case for religious discrimination in hiring.  “This is really easy” said Justice Scalia in announcing the decision from the bench. The Court ruled that an employer cannot make adverse employment decision based on the employee’s or applicant’s religious practice “whether this derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Taken as a whole, this Supreme Court term strengthened and expanded the rights of free religious exercise.  This remains one of the most dynamic aspects of constitutional and statutory law, and presents ever new opportunities to better represent Jesus Christ in the marketplace.


Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.